[2021] KEHC 6171 (KLR)
The High Court found that the preliminary objection regarding jurisdiction had already been conclusively determined by the lower court in its ruling. Applying the doctrine of res judicata under section 7 of the Civil Procedure Act, the court held that it could not revisit or alter a judgment that had already been...
Source-derived case information.
- Citation
- [2021] KEHC 6171 (KLR)
- Parties
- Appellant: Bashir Abdalla; Respondent: Peter Luganje Karisa
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E001 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection and Jurisdiction
- Outcome
- Application denied for want of jurisdiction; preliminary objection deemed conclusively determined.
- Legal Topics
- Res Judicata, Jurisdiction, Preliminary Objection, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bashir Abdalla
Appellant
Peter Luganje Karisa
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection and Jurisdiction
Legal Issues
- 1 Whether the preliminary objection on jurisdiction was conclusively determined by the lower court.
- 2 Whether the High Court has jurisdiction to revisit or alter a judgment already signed and delivered, except under review provisions.
Ratio Decidendi
The High Court found that the preliminary objection regarding jurisdiction had already been conclusively determined by the lower court in its ruling. Applying the doctrine of res judicata under section 7 of the Civil Procedure Act, the court held that it could not revisit or alter a judgment that had already been signed and delivered, except under the limited circumstances provided for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. As such, the court lacked jurisdiction to entertain the appellant's request to reconsider the matter, and the application was denied.
Court Disposition
Application denied for want of jurisdiction; preliminary objection deemed conclusively determined.
Orders
- The request to revisit or alter the judgment is denied.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARSEN
CIVIL APPEAL NO. E001 OF 2020
BASHIR ABDALLA............................................APPELLANT
VERSUS
PETER LUGANJE KARISA..............................RESPONDENT
(Being an appeal from the Ruling of Hon. E.Kadima - Senior Resident Magistrate
Court at Garsen dated and signed and delivered on the 10th August, 2020 in PMCC No. 33 of 2019)
Coram: Hon. Justice R. Nyakundi
Kokul, Fozah & Partners for the Appellant
Wambua Kilonzo & Co. Advocates for the respondent
R U L I N G
Once again Learned Counsel Mr Wambua for the Respondent in the applications filed by the intended appellant contends that the preliminary objection as to jurisdiction was never addressed by the Court. The Respondent’s Counsel points out that notwithstanding the Court’s power to grant the relief sought by the Appellant there was no determination on the issues contained in the preliminary objection. Following the grievance by the Learned Counsel, I took the liberty to peruse the record and the impugned Ruling dated 15th December, 2020. In the proceedings together with the Ruling under review the objection so raised was conclusively determined.
Keeping the principles as laid down under section 7 of the Civil Procedure Act the concerns, raised by Counsel viewed from either angle is in all practical intents and purposes res judicata.Therefore looking at Order 21 of the Civil Procedure Rules no court which has signed its judgement and final order disposing over a case shall alter save otherwise under review jurisdiction as expressly provided for under section 80 of the Civil Procedure Act and under Order 45 rule 1 of the Civil Procedure Rules. At this stage the Court has no jurisdiction to look into the matter afresh. The request is therefore respectively denied.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY JUNE, 2021.
..........................
R. NYAKUNDI
JUDGE
NB:In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.
(wambuakilonzo@gmail.com,legal@kfpartners.co.ke)